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Who's Afraid of Human Rights? the Judge's Dilemma

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Who's Afraid of Human Rights? the Judge's Dilemma I invite you as judges for whom fairness is part of your DNA to apply a critical eye to consider how you can ensure that what you do gives effect to international human rights norms, even in the face of difficulties posed by the Who’s afraid of Human Rights? The Judge’s Dilemma legislation and the Constitution; and, more than that, what you can do to encourage ratification of those instruments which have not yet been ratified and the enactment of appropriate legislation. I am aware of the obstacles; but in inviting you to take a “can do” attitude, therein lays the challenge or dilemma. Fifth Distinguished Jurist Lecture 2015 by Dame Linda Dobbs, DBE Who’s Afraid of Human Rights? The Judge’s Dilemma Who’s Afraid of Human Rights? The Judge’s Dilemma Q Judicial Education Institute of Trinidad and Tobago Fifth Distinguished Jurist Lecture 2015 By Dame Linda Dobbs, D.B.E. © Judicial Education Institute of Trinidad and Tobago 2015 All rights reserved. Except for use in review, no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, any information storage or re- trieval system, or on the internet, without permission in writing from the publishers. Produced for the JEITT by: www.pariapublishing.com Typeset in Arno Pro by Paria Publishing Company Limited and printed by The Office Authority Limited ISBN 978-976-8255-31-0 (e-book) ISBN 978-976-8255-30-3 (hardcover) IV QContents Foreword 1 General Introduction by Kelsea Mahabir 4 Introduction of Dame Linda Dobbs D.B.E by The Honourable Madame Justice Judith Jones 7 Who’s Afraid of Human Rights? The Judge’s Dilemma by Dame Linda Dobbs, D.B.E. 11 Vote of Thanks by The Honourable Madame Justice Mira Dean-Armorer 38 Photographs 40-43 Panel Discussion 44 Moderator’s Opening Remarks by The Honourable Madame Justice Charmaine Pemberton 45 Moderator’s Introduction of Dr. Francis Alexis 49 Panel Discussion— Address by Dr. Francis Alexis 50 Moderator’s Introduction of The Honourable Madame Justice Maureen Rajnauth-Lee 58 Panel Discussion— The Honourable Madame Justice Maureen Rajnauth-Lee 59 Moderator’s Introduction of Professor Rose-Marie Belle Antoine 72 Panel Discussion— Address by Professor Rose-Marie Belle Antoine 73 Moderator’s Introduction of Dr. Dylan Kerrigan 87 Panel Discussion— Address by Dr. Dylan Kerrigan 88 Comments and Responses 96 The Board and Staff of the JEITT 2015 V Judicial Education Institute of Trinidad and Tobago Recent publications by the JEITT VI QForeword T his year, the Judicial Education Institute of Trinidad and Tobago (JEITT) celebrated the fifth lecture in our annual Distinguished Jurist Lecture series. These lectures have been a priority of the Institute over the past five years for the necessary discussions that they evoke. Our past lectures and discussions have generated widespread debate, and we hope that this year’s dialogue will have similar effects. The Distinguished Jurist Lecture 2015 was held in the Convocation Hall at the Hall of Justice, Port of Spain on May 13, 2015. Our Distinguished Jurist was Dame Linda Dobbs, D.B.E. Her lecture, “Who’s Afraid of Human Rights? The Judge’s Dilemma” was not only the first of its kind hosted by the Judiciary, but also a somewhat challenging one for the Judiciary family. In fact, it was a direct challenge to the Judges who might find their hands figuratively tied and are therefore unable to act in accordance with internationally accepted human rights standards. It was certainly a clarion call for Judges to play a greater part in promoting and defending fundamental human rights, if not a call to activism. Dame Linda, a retired Judge from the United Kingdom, is no stranger to our local Judiciary, having made several presentations over the years. On this occasion, as she states, she wore neither a judicial nor a lawyer’s hat but rather one looking at the issues more as that of a devil’s advocate or an ‘informed observer’. The lecture and the panel discussion that followed were an outstanding success. The lecture itself is divided into two parts – (i) the United Kingdom experience on human rights and a short history behind the introduction and the impact of the 1998 Human Rights Act (United Kingdom); and (ii) certain international human rights instruments that have been ratified by Trinidad and Tobago but opt-out provisions have been entered and some which have not been ratified by Trinidad 1 Judicial Education Institute of Trinidad and Tobago and Tobago at all. This latter category highlights the fundamental rights of certain classes of persons within Trinidad and Tobago which are not protected, due to the existing national legislation and Constitution being incompatible with fundamental human rights. Such a situation can and does create dilemmas for the Courts. Dame Linda’s reference to the Human Rights Act 1998 in the United Kingdom, where for the first time United Kingdom judges were allowed to interpret human rights domestically, is both useful and informative. Where a Judge finds that the law is incompatible with Convention rights, he/she can make a declaration of incompatibility which would require Parliament to amend the law. The sovereignty of Parliament is retained but such a declaration could force its hand to amend. As we continue to talk about constitutional reform in Trinidad and Tobago, it may be that a similar mechanism could be useful if only to expedite an amendment to an offending provision. Dame Linda’s recognition of four areas of the law where Trinidad and Tobago had not ratified certain human rights instruments at all, or had ratified certain instruments but with reservations, was compelling and she questioned the role of the Judge in not calling for total implementation. These areas are: capital punishment, corporal punishment, imprisonment of young offenders and sexual orientation. It will serve us well to give considerable thought to her observations in our quest to achieve developed, as compared to developing, nation status. Dame Linda concludes by calling on Judges to find ways and means to ensure that effect is given to international human rights norms, even in the face of difficulties posed by legislation and the Constitution. She makes a bold and independent move by standing up before the heads of our legal and political systems within Trinidad and Tobago, insisting that they must play a greater role in having this state of affairs resolved so as to ensure that Trinidad and Tobago conforms to the imperatives of all basic fundamental rights. A panel discussion on the afternoon of May 14, 2015 followed Dame Linda’s lecture. Our distinguished panellists were The Honourable 2 Distinguished Jurist Lecture 2015 Madame Justice Maureen Rajnauth-Lee, Judge of the Caribbean Court of Justice; Dr. Francis Alexis, prominent Grenadian politician; Professor Rose-Marie Belle Antoine, Dean of the Faculty of Law at the University of the West Indies’ St. Augustine campus; and Professor Dylan Kerrigan, Lecturer in Cultural Anthropology and Political Sociology at the University of the West Indies’ St. Augustine campus. We are certain that reading their contributions will enhance and deepen your understanding of, and bring further insights to, the topic. In retrospect, when the JEITT started this Distinguished Jurist Lecture series, we were unsure about its viability and whether it would have been sustainable. Not only have we been able to host it every year for the last five years, but it has become something of note both in the legal fraternity and in the Judiciary community. Admittedly, we continue to remain uncertain as to its impact in the national community and its effects on public discourse on the topics that have shaped the lectures and panel discussions. Nevertheless, we remain committed to continuing these Distinguished Jurist Lectures and to ensuring that they are made available to the widest national, regional and international audiences available. In this latter regard, the 2015 lecture was streamed live internationally via the world wide web, in addition to being televised and published in local media. It remains our hope that through these lectures and panel discussions, the JEITT and the Judiciary of Trinidad and Tobago can continue to play its leadership role in informing and educating the public about current and relevant topics related to the administration of Justice in Trinidad and Tobago and in the region. Justice Peter Jamadar JA Chairman, JEITT Justice Roger Hamel-Smith (Ret.) Programme Director, JEITT December 2015 3 Judicial Education Institute of Trinidad and Tobago General Introduction KelseaQ Mahabir Kelsea Mahabir T he Honourable The Chief Justice, Mr. Justice Ivor Archie. Distinguished members of the Diplomatic Corps. Our very distinguished speaker and special guest, The Honourable Dame Linda Dobbs. Chairman of the Judicial Education Institute, Mr. Justice Peter Jamadar, Justice of Appeal. Director of the Judicial Education Institute, Mr. Justice Roger Hamel- Smith, and other distinguished members of the Board of the Institute. 4 Distinguished Jurist Lecture 2015 Other Justices of Appeal, Judges and Masters of the Supreme Court of Trinidad and Tobago. Judges of the Caribbean Court of Justice. Judges and members of the Superior Courts of Record here in Trinidad and Tobago. Magistrates, Registrars and members of the Court Administrative Unit. Members of the Media. Distinguished ladies and gentlemen. A very good evening again to one and all. I am Kelsea Mahabir, the Research and Publications Specialist at the Judicial Education Institute of Trinidad and Tobago, but for this evening I am going to change my hat and wear the one of Master of Ceremonies to guide you through what we anticipate to be a most informative evening.
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